JAMES G. CATTALO, PETITIONER V. UNITED STATES OF AMERICA;
DAVID GROVE, PETITIONER V. UNITED STATES OF AMERICA
No. 90-6135, No. 90-6222
In The Supreme Court Of The United States
October Term, 1990
On Petitions For A Writ Of Certiorari To The United States Court Of
Appeals For The Third Circuit
Brief For The United States In Opposition
OPINIONS BELOW
The judgment orders of the court of appeals (Pet. App. 14a-17a) are
unreported. /1/ The order and opinion of the district court (Pet.
App. 1a-12a) are also unreported.
JURISDICTION
The judgments of the court of appeals were entered on July 24,
1990. Pet. App. 14a-17a. The petitions for a writ of certiorari were
filed on October 22, 1990. The jurisdiction of this Court is invoked
under 28 U.S.C. 1254(1).
QUESTIONS PRESENTED
1. Whether the district court properly allowed three defense
witnesses to decline to testify based on their Fifth Amendment
privilege against self-incrimination.
2. Whether the district court properly refused to allow petitioners
to play six government tapes in their entirety before the jury.
3. Whether the district court properly entered a judgment of
forfeiture against petitioners holding them and two co-defendants
jointly and severally liable for the total amount of gross proceeds
that the jury determined was subject to forfeiture.
STATEMENT
After a jury trial in the United States District Court for the
Eastern District of Pennsylvania, petitioners were convicted of
participating in the affairs of an enterprise through a pattern of
racketeering activity, in violation of the Racketeer Influenced and
Corrupt Organizations Act (RICO), 18 U.S.C. 1962(c); and conspiring
to commit that offense, in violation of 18 U.S.C. 1962(d). In
addition, petitioner Cattalo was convicted on two counts of possessing
methamphetamine and cocaine with intent to distribute these
substances, in violation of 21 U.S.C. 841(a)(1); three counts of
making false declarations before a district court, in violation of 18
U.S.C. 1623; and three counts of filing false tax returns, in
violation of 26 U.S.C. 7206(1). Petitioner Grove was, in addition to
the RICO convictions, convicted on three counts of possessing
methamphetamine and cocaine with intent to distribute these
substances, in violation of 21 U.S.C. 841(a)(1); and three counts of
filing false tax returns, in violation of 26 U.S.C. 7206(1).
Petitioners were each sentenced to 15 years' imprisonment, a
$10,000 fine, five years of probation, and three years of special
parole. Petitioners were each also ordered to pay $5000 in
restitution. In addition, the district court entered a judgment of
forfeiture against petitioners and two co-defendants, jointly and
severally, in the amount of $180,700.
1. Petitioners were members of an undercover narcotics unit of the
Philadelphia Police Department known as "5 Squad," which was headed by
co-defendant John Wilson. Between 1980 and 1984, petitioners and
other members of 5 Squad engaged in a systematic pattern of robbing
drug dealers and stealing and accepting bribes from them. In a
typical robbery, petitioners would falsify information to obtain a
search warrant and in executing the warrant take money and valuables
found at the search location for later division among the members of 5
Squad. In return for bribes, petitioners refrained from arresting
major dealers of P2P, methamphetamine, and cocaine, and supplied these
dealers with information about ongoing police investigations.
Petitioners and their partners, Leo Ryan and Charles Hund, also stole
cocaine, marijuana, and methamphetamine from drug dealers for resale
through other drug dealers. Gov't C.A. Br. 8-19.
5 Squad was disbanded in February 1984. In February 1987,
following a federal investigation, petitioner Cattalo's partner, Leo
Ryan, was indicted in the United States District Court for the Eastern
District of Pennsylvania. This prompted a series of meetings among
petitioners and Wilson, during which they agreed on a fabricated
version of events to rebut the charges against Ryan. Thereafter at
Ryan's trial, petitioner Cattalo falsely testified about three
searches during which he and Ryan had stolen money. Gov't C.A. Br.
21-22.
After Ryan was convicted, Ryan and Charles Hund, petitioner Grove's
partner, began cooperating in the government's investigation of 5
Squad. /2/ Ryan and Hund tape-recorded some of their conversations
with petitioners and Wilson.
2. At petitioners' trial, the government played portions of four of
the six tapes that Ryan and Hund had obtained. In those portions,
among other things, Ryan was told not to cooperate with the
government's investigation and Hund was offered spurious defenses in
case he was indicted. Gov't C.A. Br. 22, 55. Ryan and Hund also
testified for the government at petitioners' trial.
At several points before and during trial, petitioners or their
co-defendants moved to have some or all of the government tapes played
in their entirety on the grounds of completeness. On each occasion,
the court said it would consider admitting portions of the tapes if an
offer of proof were made that specifically identified relevant
portions and the evidentiary basis for their admission. None of the
defendants made such an offer at any time during the government's
case. Gov't C. A. Br. 55-59. /3/
During petitioner Grove's defense case, counsel for Grove renewed
his previous motion to play the unplayed portions of the government
tapes in their entirety. In addition to the completeness argument,
Grove's counsel claimed that these portions contained prior
inconsistent statements by Ryan and Hund and exculpatory statements by
petitioners. The court reviewed the portions identified and
determined that there were no inconsistencies. The court also ruled
that the unplayed portions were not admissible either for the sake of
completeness under Fed. R. Evid. 106 or to show petitioners' then
mental state under Fed. R. Evid. 803(3). Gov't C.A. Br. 59-60. /4/
3. As part of their defense case, petitioners subpoenaed three
former 5 Squad members -- Raymond Stackhouse, Andrew Dougherty, and
Edward Krystopa -- to testify. At a hearing out of the presence of
the jury, each of the three declined to testify based on his Fifth
Amendment privilege against self-incrimination. Gov't C.A. Br. 46;
C. A. App. 5769-5779. /5/
4. After the jury found petitioners and co-defendants Wilson and
Ronald Giongo guilty on the RICO counts, the district court submitted
the forfeiture issue to the jury. In response to questions on a
special verdict form, the jury indicated that: (1) the "total amount
of gross proceeds to the enterprise that should be forfeited to the
United States" was $180,700; and (2) "the amount * * * that each
defendant is required to forfeit" was $5,000 for each petitioner and
for Wilson, and $0 for Giongo. Pet. App. 4a-5a, 13a.
The district court subsequently granted the government's motion to
mold the forfeiture verdict, and it entered a judgment of forfeiture
against petitioners, Wilson, and Giongo, jointly and severally, in the
amount of $180,700. Pet. App. 1a-12a. The court concluded that the
jury's response to the question on the special verdict form regarding
individual apportionment was not binding. The court determined that
there was no "rational legal basis, on the evidence in this case, for
the jury's individual apportionment amounts, particularly in light of
their response to the gross proceeds question." Id. at 8a-9a. The
court also determined that, since forfeiture is mandatory, "the
individual apportionments constitute impermissible remission or
mitigation of the proceeds acquired from the defendants' racketeering
activity." Id. at 9a. The court further concluded that "there is no
bar to the imposition of joint and several liability on a RICO
forfeiture verdict," and it found "imposition of joint and several
liability consistent with the statutory scheme." Id. at 12a. The
court accordingly ruled that "entering judgment based on the gross
proceeds is most appropriate under the circumstances." Ibid.
5. The court of appeals summarily affirmed petitioners' convictions
and the judgment of forfeiture in unpublished judgment orders. Pet.
App. 14a-17a.
ARGUMENT
1. Petitioners first contend that the district court deprived them
of their Sixth Amendment right to compulsory process when it allowed
three former members of 5 Squad called as defense witnesses to refuse
to testify based on their Fifth Amendment privilege against
self-incrimination. No. 90-6135 Pet. 14-20; No. 90-6222 Pet. 14-20.
That contention is incorrect.
A criminal defendant's Sixth Amendment right to compulsory process
does not override a witness's Fifth Amendment privilege against
self-incrimination. See, e.g., Alford v. United States, 282 U.S. 687,
694 (1931); United States v. Paris, 827 F.2d 395, 398-399 (9th Cir.
1987); United States v. Whittington, 783 F.2d 1210, 1218-1219 (5th
Cir.), cert. denied, 479 U.S. 822 (1986); United States v. Thornton,
733 F.2d 121, 125 (D.C. Cir. 1984). Instead, when a witness invokes
the privilege, the privilege must be sustained if it is "evident from
the implications of the question, in the setting in which it is asked,
that a responsive answer to the question or an explanation of why it
cannot be answered might be dangerous because injurious disclosure
could result." Hoffman v. United States, 341 U.S. 479, 486-487 (1951).
"It is for the (trial) court to say whether (the witness's) silence
is justified, and to require him to answer if it clearly appears to
the court that he is mistaken." Id. at 488 (citations and internal
quotation marks omitted). The trial court's determination "must be
governed as much by (its) personal perception of the peculiarities of
the case as by the facts actually in evidence." Id. at 487.
Contrary to petitioners' assertion (No. 90-6135 Pet. 18-20; No.
90-6222 Pet. 18-20), the district court had ample evidence before it
supporting the basis for the three witnesses' assertion of their
privilege against self-incrimination. The indictment in this case
charged petitioners and co-defendant Wilson with a conspiracy to
obstruct justice as well as the RICO conspiracy. /6/ In connection
with the investigation of 5 Squad, each witness had been served with a
letter advising that he was the target of a federal investigation into
a RICO conspiracy and a conspiracy to obstruct justice. C.A. Supp.
App. 27-29; see C.A. App. 5773. Moreover, each witness was
identified in the bill of particulars as an unindicted co-conspirator
in both conspiracies. C.A. Supp. App. 23, 25. Accordingly, before
trial, counsel for the three witnesses advised the court that each
would invoke his privilege against self-incrimination and refuse to
testify. C.A. App. 6891-6896. At trial, all three of the witnesses
were squarely identified as active co-conspirators in both
conspiracies during the government's case-in-chief. Gov't C.A. Br.
46. Finally, at the hearing out of the presence of the jury, each of
the witnesses invoked his Fifth Amendment privilege after being sworn.
C.A. App. 5771-5772. Because the record before the court was replete
with evidence that the three witnesses were involved in the criminal
conduct about which petitioners wished to question them, the district
court properly concluded that each was entitled to invoke his Fifth
Amendment privilege against self-incrimination. See Hoffman v. United
States, 341 U.S. at 487-489; United States v. Thornton, 733 F.2d at
125. /7/
2. Petitioners further contend that the district court deprived
them of their Fifth Amendment and Sixth Amendment rights to present a
defense by refusing to admit into evidence all six government tapes in
their entirety. No. 90-6135 Pet. 21-24; No. 90-6222 Pet. 21-24.
This fact-bound contention is erroneous and in any event does not
warrant this Court's review.
The district court properly rejected petitioners' repeated
assertions that admission of all the tapes in their entirety was
necessary for the sake of completeness. As the district court pointed
out (C.A. App. 1479), the applicable rule of evidence, Fed. R. Evid.
106, requires admission of recorded statements in their entirety only
if they "ought in fairness to be considered." The court accordingly
gave petitioners numerous opportunities to show why, under Rule 106 or
any other principle, their blanket request for admission should be
granted. Gov't C.A. Br. 56-59. Petitioners simply failed to avail
themselves of these opportunities.
Petitioners' failure to make the minimal proffer requested by the
trial court provides no basis for review by this Court. As the Court
has recognized, a defendant "does not have an unfettered right to
offer testimony that is incompetent, privileged, or otherwise
inadmissible under standard rules of evidence." Taylor v. Illinois,
484 U.S. 400, 410 (1988). Rather, evidence may be excluded "through
the application of evidentiary rules that themselves serve the
interests of fairness and reliability -- even if the defendant would
prefer to see that evidence admitted." Crane v. Kentucky, 476 U.S.
683, 690 (1986). The lower court's evidentiary ruling was well within
its discretion to make.
3. Finally, petitioners contend that the district court improperly
held them jointly and severally liable for the total amount of the
forfeiture judgment. No. 90-6135 Pet. 25-27; No. 90-6222 Pet. 25-27.
Contrary to petitioners' contention, the district court was not
bound to give effect to the jury's individual apportionments on the
special verdict form. The forfeiture provisions of 18 U.S.C. 1963 are
mandatory. See, e.g., United States v. Kravitz, 738 F.2d 102, 104 (3d
Cir. 1984), cert. denied, 470 U.S. 1052 (1985); United States v.
Hess, 691 F.2d 188, 190 (4th Cir. 1982); United States v. Godoy, 678
F.2d 84, 88 (9th Cir. 1982), cert. denied, 464 U.S. 959 (1983);
United States v. L'Hoste, 609 F.2d 796, 809-811 (5th Cir.), cert.
denied, 449 U.S. 833 (1980). Thus, once the jury had determined the
extent of the interest and property subject to forfeiture to be
$180,700, the court was required to enter a judgment of forfeiture in
that amount. See Fed. R. Crim. P. 31(e); United States v. Kravitz,
738 F.2d at 105. The district court correctly concluded (Pet. App.
6a-10a) that the jury's subsequent apportionment of $15,000 among
petitioners and co-defendant Wilson constituted an impermissible
mitigation of the forfeiture.
The district court was also correct in concluding (Pet. App.
10a-12a) that petitioners and their two co-defendants should be
jointly and severally liable for the amount of the judgment. In
United States v. Caporale, 806 F.2d 1487, 1506-1509 (11th Cir. 1986),
cert. denied, 483 U.S. 1021 (1987), the court explained that the
imposition of joint and several liability in circumstances such as
these is consistent with the legislative history of the RICO
forfeiture provision and advances the express purposes of the RICO
statute. See also United States v. Benevento, 663 F. Supp. 1115,
1118-1119 (S.D.N.Y. 1987), aff'd, 836 F. 2d 129 (2d Cir. 1988).
Indeed, if the government were required to determine the precise
allocation of the proceeds of racketeering among the offenders before
forfeiture could be ordered, the effectiveness of the forfeiture
remedy would be substantially impaired. Offenders could escape the
forfeiture of their illegal profits simply by masking the allocation
of the proceeds among them. Cf. United States v. Cauble, 706 F.2d
1322, 1346-1347 (5th Cir. 1983), cert. denied, 465 U.S. 1005 (1984).
/8/
CONCLUSION
The petitions for a writ of certiorari should be denied.
Respectfully submitted.
KENNETH W. STARR
Solicitor General
ROBERT S. MUELLER, III
Assistant Attorney General
JOSEPH C. WYDERKO
Attorney
JANUARY 1991
/1/ "Pet. App." refers to the appendix to the petition in No.
90-6135. We have numbered the pages 1a-19a.
/2/ Hund was indicted along with petitioners in this case. He
pleaded guilty pursuant to a plea agreement. Gov't C.A. Br. 4 n.1.
/3/ The court also indicated that petitioners could use unplayed
portions of the government tapes during cross-examination of Ryan and
Hund to refresh their recollection out of the presence of the jury or
to prove prior inconsistent statements. C.A. App. 1545-1548,
1553-1555. During Ryan's cross-examination, neither petitioner asked
about the contents of the unplayed tapes. Gov't C.A. Br. 56-57.
During Hund's cross-examination, petitioner Cattalo asked about the
unplayed tapes, and Hund testified that they contained conversations
concerning unrelated, "innocent" matters. Id. at 57-58. Petitioner
Grove did not question Hund about the unplayed tapes. Ibid.
/4/ Petitioner Grove also moved for permission to play two other
tapes that had not bee made by the government; they concerned
conversations between Ryan and his insurance company and between Hund
and a DEA agent. Petitioners do not appear to raise any issue with
respect to the district court's subsequent exclusion of those tapes.
No. 90-6135 Pet. 11-12, 21; No. 90-6222 Pet. 11-12, 21.
/5/ Three other former members of 5 Squad -- Charles Newman, James
Hunt and James Fee -- did testify as defense witnesses. Gov't C.A.
Br. 46 n.20.
/6/ Petitioners and co-defendant Wilson were acquitted on the
conspiracy to obstruct justice count of the indictment.
/7/ Petitioners incorrectly argue (No. 90-6135 Pet. 18-19; No.
90-6222 Pet. 18-19) that the witnesses faced no danger of prosecution
because the five-year statute of limitations for any RICO offenses
that they committed between 1980 and 1984 had expired by November
1989, when they were called to testify. In fact, the witnesses were
still subject to prosecution based on RICO offenses during the
1980-1984 period at the time of trial. RICO permits prosecutions for
a pattern of racketeering activity if any predicate act is committed
within five years of the indictment. A "pattern of racketeering
activity" includes any racketeering activity committed within ten
years after the commission of a prior act of racketeering activity.
18 U.S.C. 1961(5). Since the federal investigation into 5 Squad
activities was ongoing at the time of trial (C.A. App. 5492-5493),
there remained a distinct possibility that later criminal acts by the
witnesses would be discovered. In any event, the statute of
limitations had not expired for the conspiracy to obstruct justice in
which the witnesses were implicated, because that offense was ongoing
during Ryan's 1987 trial.
/8/ Contrary to petitioners' assertion (No. 90-6135 Pet. 25-26;
No. 90-6222 Pet. 25-26), the decision below does not conflict with
any court of appeals decision. None of the decisions cited by
petitioners concerns joint and several liability for RICO forfeiture
judgments. See United States v. Ofchinick, 883 F.2d 1172, 1177-1184
(3d Cir. 1989), cert. denied, 110 S. Ct. 753 (1990); United States v.
Porcelli, 865 F. 2d 1352, 1364-1366 (2d Cir.), cert. denied, 110 S.
Ct. 53 (1989); United States v. Horak, 833 F.2d 1235, 1241-1245 (7th
Cir. 1987).